J. Dawson Gasquet Memorial Professor of Law, Paul M. Hebert Law Center, Louisiana State University. J.D. Yale Law School, 1991; B.A., Southern University, 1988. Thanks to G. Dallon Bush, Class of 2004, for his excellent research assistance.
Civil rights law is today moribund. An impressive edifice, built upon the ruins of Jim Crow, with the blood and sweat of the civil rights movement, and intended to both dismantle that system and ensure the civil liberties that Jim Crow illustrated were all too easily lost, civil rights law was to be the lasting monument of the civil rights struggle. Fortified by this legacy, civil rights law retains a symbolic value, implying that there are formidable forces working to protect citizens from abusive state action, to ensure a broad anti- discrimination ethic, and to fix the wrongs of Jim Crow. The body of civil rights law promises much indeed. Only, today, it crumbles when one reaches for it, it disappoints when one seeks its solace, it disappears when it is needed most. It is a great ruin, a magnificent display of rotting grandeur.1
When, over twenty years ago, Critical Legal Scholars argued that civil rights law promoted false consciousness,2 they could not have imagined how quickly what they criticized would be lost. Ten Page 786 years ago, when Critical Race Theorists complained about the dismantling of that law,3 they could not have imagined how complete the gutting of the field would be. Distracted, perhaps, with the important questions of understanding race, identity, and being and the law's intersection with these notions,4 critical theorists paid inadequate attention to the doctrinal background for all these debates.5 Indeed, both critical movements have been Page 787 criticized for exaggerating the inadequacies of civil rights law.6There are in fact many commentators who reasonably contend that civil rights law remains vibrant.7 These defenders of the current state of civil rights law can note that few central civil rights cases and statutes have been invalidated.8 And, in every controversial reexamination of civil rights precedent of the last two decades, save affirmative action, the important civil rights precedent under review has been upheld. In fact, in 1989 when the Supreme Court cast doubt on several significant civil rights doctrines, it did so by leaving the doctrines intact but imposing onerous requirements on their use.9 Even then, Congress quickly reaffirmed the original Page 788 constructs.10 As a consequence it is difficult to say that civil rights law is dead,11 much less to explain what brought on that death.
One easy explanation of the demise of civil rights law focuses on changes in the political temperament of judges in the federal judiciary since the election of President Reagan in 1980.12 This argument holds that conservative judges, hostile to civil rights, have simply undercut civil rights law.13 This is surely an accurate and compelling explanation, possessing the additional advantage that conservative politicians have been candid in their goal of "reigning in" civil rights law.14 While this explanation is accurate, it seems insufficient to tell Page 789 the story of civil rights law's demise. In civil rights law there is a troubling absence of landmark reversals of cornerstone decisions as Page 790 well as a dearth of new, conservative landmark decisions. Again, with the exception of newly articulated limitations on affirmative action there have been few reversals of settled law.15 And, excluding the affirmative action-like decisions on electoral reapportionment16and the recent sovereign immunity decisions,17 there have been few landmark decisions pointing civil rights law in a distinctly conservative direction. The troubling aspect of the "conservative judges" explanation, then, is that conservative judges have themselves continued to celebrate the central importance of civil rights law in the post-civil rights world.18 Louis Henkin's declaration that we live in the "age of rights"19 holds, even if it is a conservative age. Under these circumstances we might doubt that civil rights law is dead at all.
The following pages articulate a supplemental theory (explaining the demise of civil rights law) and illustrate the operation of that theory in the demise of 42 U.S.C. ß 1985(3). The theory is that civil rights litigation has been plagued from the beginning by an "activist insecurity" which has undercut civil rights law even during the Page 791 "revival" period when courts were self-consciously seeking to expand civil rights causes of action in the name of an age of rights. When the orientation of the courts changed-circa the Supreme Court's 1977 and 1978 terms-the judicial style along with the legal precedents created under the influence of the activist insecurity made civil rights law particularly vulnerable. And, since about 1978 that law has been eviscerated, leaving a seemingly untouched carcass hanging trophy- like in the halls of conservative retrenchment.
The activist insecurity is a judicial unease with affecting social change. It is not based on legal or constitutional principle; rather, it is a mostly unstated notion that courts should not change the social status quo ante, absent extraordinary reasons for doing so. It is, thus, a substantive restriction on judicial decisions that operates irrespective of existing legal doctrine. As such, it is the motivation behind the manipulation of legal doctrine, procedural and substantive, in the fulfilment of relatively conservative outcomes. Judges simply do not believe in social change, even when the law seems to require it of them. Consumed with the activist insecurity, judges leap at restrictions in the law that quell the prospects of change while stonewalling, defraying, and avoiding applicable legal doctrine when it demands social change. Consequently, civil rights law has been less the rule of law than the rule of men, frightened men (and women).
The activist insecurity takes two general forms: first, judges require that parties seeking social change assiduously comply with prerequisites, restrictions, and limitations in extant law. Second, those judges themselves escape extant law if it requires social change, usually by generalizing the legal question presented (and ignoring the narrow legal requisites to which they held the civil rights plaintiffs).
These forms operate in opposite directions. The former points toward ever narrower conceptions of legal questions. Plaintiffs are required, for example, to focus on the narrowest cause of action under which they might proceed.20 Under the latter form, however, judges faced with a statutory right which requires social change flee to the first broader principle which might block it.
The first, narrowing form characterizes the revival period in civil rights law. Concerned that the need for social change (called for by the civil rights movement) placed improper demands on constitutional law, the Courts sought narrower grounds for the civil rights law they were creating. Consequently such a law is today rooted in statutes from the Reconstruction Era (given new life by an antsy judiciary) and more recent legislation inspired by the civil rights movement. The latter, generalizing form predominates today, with a Page 792 restrictive judiciary eager to constitutionalize every question in order to pre-empt discomforting state and federal legislation.
The following discussion will proceed in three parts. Part one will define the revival and limiting periods of civil rights law. This definition is key to understanding the limitations of the "conservative justices" theory of civil rights law's demise. Part two will define the activist insecurity in some detail. Part three, finally, will illustrate the role of the activist insecurity in the demise of 42 U.S.C. ß 1985(3).
The story of civil rights law is conventionally told in three parts. First, there is a glorious period of revival,21 beginning with Brown v. Page 793 Board of Education and coinciding with the civil rights movement and the term of Chief Justice Warren. Second, there is a period of limitation which is usually dated to coincide with the term of Chief Justice Burger. And, in recent years, a separate period of conservative retrenchment is said to follow, beginning with the election of Ronald Reagan as president and the elevation of William Rehnquist to Chief Justice.22 Each stage of the story tells a tale of law and politics turning on the significant question: how could so much change have occurred without undercutting the legal traditions which give law its power and distinguish it from raw...